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Rape Suspects' Uphill Road

August 17, 2003|Barry Tarlow | Barry Tarlow is a criminal defense attorney and former prosecutor with the U.S. attorney's office.

Not so long ago in this country, those accused of rape or sexual assault could defend against the charges on the theory that people behave in conformity with their character. Let's say an alleged victim of sexual assault had been seen fondling and groping men at a bar early in an evening, and let's say the defendant claimed that the woman had similarly fondled and groped him as part of a consensual act later in the evening. The defendant could present evidence of the woman's earlier behavior to lend credibility to his version of events.

Times have changed. Today, in cases of sexual assault, it is the accuser, not the accused, who is presumed innocent.

In 1974, Michigan became the first state to enact what is now commonly called rape shield legislation, which prohibited, in most criminal sexual assault cases, the introduction into evidence of an alleged victim's previous sexual history. Since then, almost every state has enacted similar laws. The laws were intended to keep sexual assault victims from having humiliating details of their sexual histories trotted out before juries and the press and to keep juries from letting evidence about a woman's past sexual history prejudice their views of a victim's credibility. But they have become a serious impediment to fair trials, especially since other rules of evidence in most states allow prosecutors to present details about a defendant's sexual history.

We are about to witness the imbalance of these rules in the case of Los Angeles Laker star Kobe Bryant in Eagle, Colo. Colorado has a stringent rape shield law. Evidence about an alleged victim's reputation or sexual conduct with others is presumed to be "irrelevant," and the Colorado Supreme Court has ruled that this "generally renders a victim's sexual history inadmissible."

Colorado, like California and most other states, has also declared that, in cases involving allegations of sexual misconduct, the "prosecution may introduce evidence of other acts of the defendant." Although there are limitations on introducing such evidence, the Colorado statute expressly identifies 16 different possible theories for which "other act" evidence might be introduced. It then clarifies that these are only examples, and not exclusive, that such evidence may also be introduced to prove "any other matter for which it is relevant."

For Bryant, who has been charged with sexual assault, this is likely to mean that much of his intimate sexual history will now become "fair game." Like our country's last president, Bryant has made a humiliating public admission that he committed adultery. The prosecution's task, however, is not to prove that sexual contact occurred, but that it occurred without the alleged victim's consent.

Eagle County Dist. Atty. Mark Hurlbert might see it in the interest of his case to explore whether Bryant has aggressively sought out other adulterous relationships, believing that such evidence would be presumptively admissible to insinuate a sexual voraciousness consistent with cultural assumptions about perpetrators of sexual assaults. Although the defense might also be interested in investigating whether the alleged victim has previously engaged in similar sexual behavior, it would have an uphill battle to get such evidence in front of the jury. The same goes for evidence of sexual aggressiveness. Any evidence of it in his past may be admissible; in hers, that's not likely.

A central tenet of our system of justice has always been that the accused is presumed innocent. When put on trial, a defendant is supposed to be tried only on the charges that were filed, not for any other illegal or unethical acts. For centuries, courts have held fast to this principle. Now a public-policy decision designed to correct vestiges of Victorian-era morality has stacked the deck against every citizen accused of a sex crime.

Our justice system depends on the belief that a randomly drawn jury, culled only for prejudice and partiality, can detect truth and falsity. But if a jury is given a skewed presentation of the facts, or if important facts are withheld from a jury, we cannot expect it to do justice.

Most rape cases that turn on whether a sex act was consensual, as the Bryant case certainly will, ultimately come down to a "he said/she said" contest between the accused and the accuser. But how can a jury accurately judge the credibility of the two parties if the accused has been presented in the worst possible light while the accuser is enshrouded in a cloak of purity?

The legitimacy of a system of justice depends on the perception that it is fair and evenhanded. When the same standards of admissibility are applied consistently to both sides, and when they are the same standards that apply uniformly to all types of cases, we can trust that trials are properly functioning as truth-seeking processes. But when the scales of a case are heavily weighted toward one side, the fairness of the system and of the verdict are called into doubt.

Recent developments in DNA testing have demonstrated some of the more egregious problems in our criminal justice system. We do not have scientific tests capable of separating fact from fantasy -- much less distinguishing criminal acts from the good-faith misunderstandings that frequently occur in human interactions. The large number of rape cases in which defendants condemned to years of imprisonment were later exonerated by DNA testing confirms that many innocent people have been wrongly accused. Nothing so definitive can clear those wrongly convicted in cases turning on matters of consent rather than identity. But, given the biases of the law against the accused, we can rest assured they are out there.

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